United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE.
matter is before the Court on a Motion by Plaintiff to Exceed
Ten (10) Depositions [DE 87], filed by Plaintiff Denise Szany
on November 1, 2018. Defendant City of Hammond (the
“City”) filed a response on November 12, 2018.
Szany filed a reply on November 15, 2018.
motion, Szany requests that she be permitted to conduct
nineteen depositions in this litigation. Specifically, she
wishes to depose the seven witnesses to the event that gave
rise to this litigation, two people to whom Szany complained,
three people expected to report conduct similar to that of
which Szany complains, one officer who asserts knowledge of
the event and its investigation, an attorney hired by the
City to represent Szany (Szany claims that this hiring was a
retaliatory act), five people identified as “Title VII
significant witnesses, ” and Defendant Jamie Garcia. By
the Court's count, twenty deponents have been identified,
but it is possible that one deponent falls into two of the
categories and has been counted twice. Whether a total of
nineteen or twenty depositions is requested does not affect
the Court's resolution of this motion.
Rule of Civil Procedure 30 provides that, when seeking to
take a deposition, “[a] party must obtain leave of
court . . . if the parties have not stipulated to the
deposition and . . . the deposition would result in more than
10 depositions being taken.” Fed.R.Civ.P. 30(a)(2). In
ruling on a motion to exceed ten depositions, “the
court must grant leave to the extent consistent with Rule
26(b)(1) and (2).” Id.
permitted scope of discovery provided by federal rule
forecloses irrelevant, disproportional, and unduly burdensome
discovery. Fed.R.Civ.P. 26(b)(1). Rule 26 further provides
that the Court must limit discovery if
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted
by Rule 26(b)(1).
Id. at 26(b)(2)(C).
the deposition limit, “[a] party seeking to exceed the
presumptive limit bears the burden of making a particularized
showing of the need for additional depositions.”
Thykkuttathil v. Keese, 294 F.R.D. 597, 600 (W.D.
Wash. 2013) (quotation marks omitted); accord San
Francisco Health Plan v. McKesson Corp., 264 F.R.D. 20,
21 (D. Mass. 2010) (“[C]ourts should not freely grant
relief from the limits without a showing of need.”).
Where there is no stipulation to take the extra depositions,
“the party seeking the additional depositions must
specify who is to be deposed and the reasons why their
testimony is necessary.” San Francisco Health
Plan, 264 F.R.D. at 21. This party must also demonstrate
the necessity for each deposition already taken so as not to
circumvent the intention of the rule by taking unnecessary
depositions first and later seeking leave for necessary
depositions. Barrow v. Greenville Indep. Sch. Dist.,
202 F.R.D. 480, 482-83 (N.D. Tex. 2001). The additional
depositions should be distinguished from each other and from
the depositions already conducted by indicating what
information will be sought from each deponent.
Thykkuttathil v Keese, 294 F.R.D. 601, 603 (W.D.
Wash. 2013). At a minimum, the party should show that the
anticipated testimony of each prospective deponent concerns
an issue material to the case and is not unreasonably
cumulative or duplicative and that the party anticipated such
testimony from each deponent already deposed.
Barrow, 202 F.R.D. at 483-84.
has not made the required showing. First, though some
deponents are identified by name, some are not. Szany, in
reply, argues that the City must know the intended unnamed
deponents, so the City's statement that Szany has not
identified the deponents “is an absolute
untruth.” (Rep. ¶ 4, ECF No. 93). Perhaps the City
knows the identity of these individuals, but the Court does
not. Szany has not identified the unnamed deponents. Second,
Szany has not sufficiently identified the anticipated
testimony of all of the deponents and distinguished the
depositions from each other. Her motion is denied, though
the Court finds the motion premature, as the first ten
depositions may reveal the testimony of the intended extra
deponents to be duplicative, cumulative, irrelevant, or
otherwise outside the scope of discovery. Cf. MCI
Worldcom Network Servs., Inc. v. Atlas Excavating, Inc.,
No. 02 C 4394, 2003 WL 21305465 *1 (N.D. Ill. June 3, 2002)
(“[I]nitial depositions may well demonstrate that many
of the persons defendant seeks to depose know far less than
those deposed and can add nothing to what defendant
the Court hereby DENIES without prejudice
the Motion by Plaintiff to Exceed Ten (10) Depositions [DE
87]. Plaintiff Denise Szany is given leave to refile ...